Interference 102,413 Page 22
Pitha v. Muller
laboratory notebook. Pitha has not directed us to evidence
which indicates that the testing performed by Dr. Ciesielski
was standard within the industry. Furthermore, we hold the
statements by the person who performed the experiments in this
case is critical because the identification of the properties
of the reaction product is required. Pages W-14 and W-17 of
Dr. Ciesielski’s laboratory notebook do not indicate the
amorphous nature of the products produced or that these
products contain more than one cyclodextrin derivative. 35
Pitha has not directed us to evidence which establishes that
it is known in the industry that cyclodextrin derivatives are
always intrinsically amorphous. To the contrary, Szejtli
patent 4,542,211 describes amorphous and crystalline products
result from the methylation of cyclodextrin.36
Pitha argues that previous decisions in this interference
follow the principle “that it is the inventor’s recognition of
the subject matter that controls, not the language used to
describe the invention.” Pitha has not directed us to37
evidence which indicates that Dr. Pitha or Dr. Czajkowska had
35PX-27 pages 23 and 28.
36Szejtli 4,542,211, column 3, lines 9-24.
37PB page 14, footnote 7.
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